REPUBLC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. E018 OF 2025
MUSEMBI MUTUKU.....................................................................................APPELLANT
-VERSUS-
REPUBLIC ...............................................................................................RESPONDENT
(Being an appeal from the conviction and judgment in Criminal Case No. E041 of
2022 at Kithimani Law Court delivered on 15/10/2024)
JUDGEMENT
1. The Appellant Musembi Mutuku was on 8/11/2022 charged at Principal Magistrates Court Kithimani with incest contrary to Section 20(1) of the Sexual Offences Act No. 3 0f 2006. The Appellant further faced an alternative count of Committing an Indecent Act with a Child contrary to Section 11(1) of the Sexual Offences Act.
2. The particulars of the offence were that on diverse dates between the year 2021 and 2nd November 2022 at Kalukuni village in Yatta Sub-county within Machakos County he intentionally and unlawfully caused his penis to penetrate the vagina of M.M (name withheld) a girl aged 14 years who was to his knowledge his daughter.
3. The Appellant pleaded not guilty to the main and the alternative charges and the matter was set down for hearing. The Prosecution adduced evidence through five (5) witnesses.
4. The Appellant gave sworn defence evidence and did not call any witness.
5. Upon considering the evidence adduced in support of the charge, the trial court on the 15th October 2024 convicted the Appellant who was sentenced to serve a life imprisonment.
6. Being aggrieved by the trial court’s conviction and sentence, the Appellant filed Amended Grounds of Appeal contained in his Submissions dated 20th September 2025 raising 2 grounds of appeal as follows:-
a) THAT the Hon. Magistrate failed in matters of law and fact by failing to observe that he was not properly identified as the perpetrator of the offence charged.
b) THAT penetration as alleged by the witnesses is not proved by the medical document produced in court.
7. The prosecution opposes the instant appeal and submits that the trial court properly evaluated the evidence and came to the right conclusion.
Prosecution Case
8. PW1 was M.M. the victim/complainant. After conducting voire dire examination on her, she testified that in 2022, she used to stay with her father who is the Appellant after her mother remarried elsewhere explaining that on 15/10/2022 she returned home with her mother but was left behind after she escaped.
She stated that she went after her and along the way met a woman who took her to Francis who led her to Musili the village elder and was reunited with her father.
She testified that on 20/10/2022, while asleep, her father left his bed naked and went to force her to sleep with him and confirmed that on this day and entire week he had sexual intercourse with her.
She disclosed that on the date of the last incident he threatened her not to go back home insisting that he stays only with a girl who he uses. That she disclosed to her teacher Mr. Wanjie who took her to the children department and hospital where she was examined and treated.
She stated that the doctor confirmed the defilement reiterating that her father used to leave his bed naked to sleep with her and even once forcibly tore her short.
9. On cross examination the complainant divulged that she never had sex with anyone else apart from the Appellant who is her father whom she lived with after her mother remarried and threatened to poison her. She averred that the Appellant defiled her for a whole week.
10. PW2 was Julius Wanjie a teacher who testified that on 04/11/2022 PW1 reported to him that her father had been sleeping with her repeatedly. He stated that he immediately notified the Assistant Chief and together they proceeded to the children department wherebPW1 was interviewed and statements taken before taking her to a place of safety in a children’s home.
11. PW3 was Francis Mutunga Mutua, the Assistant Chief who testified that on 04/11/2022, he was telephoned by ABC School Headteacher who reported to him a case of defilement. He went to the school and together they went to the children office before reporting to the police where he recorded his statement. He told court that PW1 had been to his office together with the village elder for having been neglected after her mother had remarried.
Later he received a tip off about the Appellant’s whereabouts and traced him to Kabaa and liaised with Yatta OCS to arrest him.
12. PW4 was Richard Mutinda a Clinical Officer based at Matuu level 4 hospital testified on behalf of Dr. Maingi and told court that he examined and treated PW1 who had a history of having been defiled by the father on various dates between 2021 and November 2022. He further testified that his colleague examined PW1 and filled the P3 Form, PRC Form and Age Assessment Form confirming defilement disclosing that the incest happened on 03/11/2022 and the hymen was noted torn and not a fresh tear. Pus cells were noted and Menses -bacteria urine. He told court that he also examined the Appellant and established his urine tests results similar to the subject’s. They both had same infection. He produced the P3 form, PRC form, age assessment report and lab reports as exhibits.
13. PW5 was No. 241710 PC Lilian Mwololo, the Investigating Officer based at Matuu police station and previously at Yatta police station testified that on 04/11/2022 this case was minuted to her for investigation. She stated that PW1 went to the station accompanied by her teacher who claimed she had been defiled by her father. She testified that PW1 confirmed to her that she had been defiled by her father from 2021 to November 2022. She then escorted her to hospital where she was examined and treated with the doctor confirmed defilement over a period of time.
She then took PW1 for age assessment and produced as an exhibit the report prepared thereafter showing she was between 13-15 years. She also identified to the court PW1’s certificate of birth and stated that the Appellant stayed with PW1 after chasing her mother away.
Defence case
14. The Appellant gave sworn evidence and testified that on 02/10/2022 he was at his home when he was called outside by the headman who handed him his daughter and asked him to go to their offices for inquiries. The Appellant stated that he proceeded there and found the Sub-Chief who informed him PW1’s mother had threatened to kill her and was asked to look after her.
He testified that he stayed with her from 02/10/2022 to November 2024 when he asked her to go to her mother. That she went and returned but following threats to beat her up, she left not to return again and he proceeded to Kabaa for work before being arrested there by the Sub-Chief accompanied with two other people who took him to the police station where he was locked up.
15. The Appeal was canvassed through written submissions. The Appellant’s submissions are dated 20th September 2025 whilst the Respondent’s submissions are dated 26th June 2025 filed by Ms. Agatha Abang, prosecution counsel. I will refer to the proceedings and the parties’ respective submissions in my analysis of the appeal.
Analysis and Determination
16. This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor. This court is guided by the Court of Appeal case of Okeno – VS – Republic (1972) EA 32 where it was stated as follows: -
“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”.
17. Also, in Peter’s vs Sunday Post (1958) E.A. 424 it was held that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower courts finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses.
18. In the case of Republic Vs Edward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India Case of Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 where the case of Bhagwan Singh Vs State of M. P. (2002)4 SCC 85 was cited as follows:-
“The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining as to whether all or any of the accused has committed any offence or not.”
19. Having carefully considered the lower court record, the Petition of Appeal and the grounds raised therein as well as the submissions of the parties, I find the following as pertinent issues for determination;
a. Whether the prosecution proved the case beyond reasonable doubt
b. Whether the sentence should be interfered with.
a. Whether the prosecution proved the case beyond reasonable doubt
20. It is trite law that all criminal offences require proof beyond reasonable doubt. Lord Denning in Miller vs. Ministry of Pensions (1947) 2 All ER, 372 stated as follows:
“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.”
21. In this case, the Appellant was charged and sentenced under Section 20 (1) of the Sexual Offences Act which provide as follows:
(1) “Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that if it is alleged in the information or charge that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.”
22. The ingredients for the offence of incest can be summarized as follows;
a. Proof of the age of the victim.
b. Proof that the offender is a relative of the victim.
c. Proof of penetration or indecent act.
d. proper identification of the perpetrator.
a. Proof of the age of the victim.
23. During the voir dire examination, the complainant/victim PWI testified that she was 14 years old. PW4 the Clinical Officer confirmed the victim PWI was 14 years old. He produced the age assessment report which estimated the age as between 13-15 years of age. The 14 years falls within this bracket.
24. A cursory perusal at the proceedings shows that the Appellant did not dispute the fact of age of the complainant or raise any objection even to the production of the copy of the Age Assessment Report. The trial court thus came to the right conclusion that the age of the complainant/victim was sufficiently proved to be 14 years.
b. Proof that the offender is a relative of the victim
25. The complainant/victim PWI refers to the Appellant as her father in her evidence. She stated that she was staying with her father the Appellant alone as her mother was married elsewhere. PW3 testified that the Appellant was the victim's father. This was also confirmed by the PW5. It is confirmed in the evidence tendered by PW1, PW3 and PW5 that when PWI mother remarried, PW1 was taken to the Appellant to stay with him as he was her father.
26. Section 20 provides that:
"Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest”.
27. PW1 is the daughter of the Appellant which falls under the ambit of Section 20(1) of the Sexual Offences Act. From the evidence that was adduced during trial it is clear that the Appellant is the father of the victim and thus existed relationship as envisaged in the Act.
28. Therefore, the evidence on relationship between the complainant/victim and the Appellant is water tight.
c. Proof of penetration or indecent act.
29. On the issue of penetration, the same is defined in Section 2 of the Sexual Offences Act as;
“penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
30. The victim PW1 stated that the Appellant first had sexual intercourse with her on 20/1/2011. She states the Appellant came to her bed naked while she was asleep and forced her to sleep with him. She said it happened severally. She stayed she felt pain. She stated in page 10 of the proceedings that the Appellant "pushed his thing through my part I use to urinate. I saw his part because he was naked. He used that part to pee/urinate. I did not feel nice. " Referring to his penis and her vagina. PW1 testified that the Appellant defiled her repeatedly.
31. PW4 the clinical officer corroborates the evidence of PW1. The P3 form confirmed defilement of the subject on last incident 3.11.22. It also indicates the defilement happened over a period of time. The hymen was indicated as torn and not a fresh tear. The Post Rape Care Form indicated the same and also indicted that pus cells were noted and bacteria in the urine being a sign of an infection. Further PW4 indicated the Appellant was examined and his PW3 indicated he had the same infection as the child victim was noted. All reports were produced as exhibits before the Trial Court.
32. The defilement is said to have happened over a period of time. The hymen was torn indicating penetration. It was not a fresh tear as the defilement happened over a period of time. PW4 stated that the child PW 1 and the Appellant both had the same infection when the urine test was done on both of them. He stated in page 41 " The accused person was examined. I examined him...... urine test infection same to the child noted. "
This proves penetration and sexual intercourse by the Appellant to the victim PW1 to cause them to have the same infection. With the victim's PW1 evidence corroborated by PW4 penetration was proved.
33. On the above evidence, I have no doubt that the prosecution proved penetration to the required standard.
d. proper identification of the perpetrator.
34. PW1 the complainant testified that in 2022 she was staying with her father whom she pointed at being the Appellant while she tendered her evidence before the trial court. She stated that she was staying with her father the Appellant alone. PW1 also stated she had not had sex with anyone else other than the Appellant her father. Identification was by recognition which was the best form of identification.
35. I equally find that the prosecution’s proof of identification of the Appellant as the perpetrator was unshaken and the Appellant’s ground of appeal that the trial court and the Appellant’s ground of appeal that the trial court failed in matters of law and fact by failing to observe that he was not properly identified as the perpetrator of the offence charged to be without merit.
36. Consequently, upon re-evaluating and re-analysing the totality of the facts and evidence on record, I find that the evidence on the offence of incest herein points a firm finger at the Appellant as the perpetrator. Thus, the prosecution proved the charge of incest against the Appellant beyond reasonable doubt.
37. The upshot is that the appeal as against conviction under the offence of incest therefore fails.
a. Whether the sentence should be interfered with.
38. As regards the life sentence that was imposed on the Appellant upon conviction, this Court is guided by the decision in Republic v Joshua Gichuki Mwangi SC Petition No. E018 of 2023 that the minimum sentences in the Sexual Offences Act are constitutional.
39. By virtue of the cited Supreme Court judgment in Republic v Joshua Gichuki Mwangi SC Petition No. E018 of 2023 the courts are bound by the minimum mandatory sentence as provided for by law more so by the Sexual Offences Act NO. 3 of 2006.
40. Looking at the circumstances of this case, the Appellant took advantage of his already vulnerable daughter. The Appellant owed a duty of care to the victim as her biological father to protect her and provide for her but instead the Appellant turned into a beast and devoured her own child. The victim PW1 has to live with the very sad fact and reality that the Appellant, her father, defiled her, soiled her purity and robbed her of her virginity.
41. I find the sentence to have been legal and as prescribed by law under section 20 (1) of the Sexual Offences Act No. 3 of 2006.
42. The upshot is that, I hereby find that this appeal lacks merit and is thus dismissed in its entirety. The conviction and sentence of the trial court is upheld.
Right of Appeal 14 days.
It is so ordered.
JUDGMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 4TH FEBRUARY 2026.
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 4TH FEBRUARY 2026.
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL APPEAL NO. E018 OF 2025
MUSEMBI MUTUKU.....................................................................................APPELLANT
-VERSUS-
REPUBLIC ...............................................................................................RESPONDENT
(Being an appeal from the conviction and judgment in Criminal Case No. E041 of
2022 at Kithimani Law Court delivered on 15/10/2024)
JUDGEMENT
1. The Appellant Musembi Mutuku was on 8/11/2022 charged at Principal Magistrates Court Kithimani with incest contrary to Section 20(1) of the Sexual Offences Act No. 3 0f 2006. The Appellant further faced an alternative count of Committing an Indecent Act with a Child contrary to Section 11(1) of the Sexual Offences Act.
2. The particulars of the offence were that on diverse dates between the year 2021 and 2nd November 2022 at Kalukuni village in Yatta Sub-county within Machakos County he intentionally and unlawfully caused his penis to penetrate the vagina of M.M (name withheld) a girl aged 14 years who was to his knowledge his daughter.
3. The Appellant pleaded not guilty to the main and the alternative charges and the matter was set down for hearing. The Prosecution adduced evidence through five (5) witnesses.
4. The Appellant gave sworn defence evidence and did not call any witness.
5. Upon considering the evidence adduced in support of the charge, the trial court on the 15th October 2024 convicted the Appellant who was sentenced to serve a life imprisonment.
6. Being aggrieved by the trial court’s conviction and sentence, the Appellant filed Amended Grounds of Appeal contained in his Submissions dated 20th September 2025 raising 2 grounds of appeal as follows:-
a) THAT the Hon. Magistrate failed in matters of law and fact by failing to observe that he was not properly identified as the perpetrator of the offence charged.
b) THAT penetration as alleged by the witnesses is not proved by the medical document produced in court.
7. The prosecution opposes the instant appeal and submits that the trial court properly evaluated the evidence and came to the right conclusion.
Prosecution Case
8. PW1 was M.M. the victim/complainant. After conducting voire dire examination on her, she testified that in 2022, she used to stay with her father who is the Appellant after her mother remarried elsewhere explaining that on 15/10/2022 she returned home with her mother but was left behind after she escaped.
She stated that she went after her and along the way met a woman who took her to Francis who led her to Musili the village elder and was reunited with her father.
She testified that on 20/10/2022, while asleep, her father left his bed naked and went to force her to sleep with him and confirmed that on this day and entire week he had sexual intercourse with her.
She disclosed that on the date of the last incident he threatened her not to go back home insisting that he stays only with a girl who he uses. That she disclosed to her teacher Mr. Wanjie who took her to the children department and hospital where she was examined and treated.
She stated that the doctor confirmed the defilement reiterating that her father used to leave his bed naked to sleep with her and even once forcibly tore her short.
9. On cross examination the complainant divulged that she never had sex with anyone else apart from the Appellant who is her father whom she lived with after her mother remarried and threatened to poison her. She averred that the Appellant defiled her for a whole week.
10. PW2 was Julius Wanjie a teacher who testified that on 04/11/2022 PW1 reported to him that her father had been sleeping with her repeatedly. He stated that he immediately notified the Assistant Chief and together they proceeded to the children department wherebPW1 was interviewed and statements taken before taking her to a place of safety in a children’s home.
11. PW3 was Francis Mutunga Mutua, the Assistant Chief who testified that on 04/11/2022, he was telephoned by ABC School Headteacher who reported to him a case of defilement. He went to the school and together they went to the children office before reporting to the police where he recorded his statement. He told court that PW1 had been to his office together with the village elder for having been neglected after her mother had remarried.
Later he received a tip off about the Appellant’s whereabouts and traced him to Kabaa and liaised with Yatta OCS to arrest him.
12. PW4 was Richard Mutinda a Clinical Officer based at Matuu level 4 hospital testified on behalf of Dr. Maingi and told court that he examined and treated PW1 who had a history of having been defiled by the father on various dates between 2021 and November 2022. He further testified that his colleague examined PW1 and filled the P3 Form, PRC Form and Age Assessment Form confirming defilement disclosing that the incest happened on 03/11/2022 and the hymen was noted torn and not a fresh tear. Pus cells were noted and Menses -bacteria urine. He told court that he also examined the Appellant and established his urine tests results similar to the subject’s. They both had same infection. He produced the P3 form, PRC form, age assessment report and lab reports as exhibits.
13. PW5 was No. 241710 PC Lilian Mwololo, the Investigating Officer based at Matuu police station and previously at Yatta police station testified that on 04/11/2022 this case was minuted to her for investigation. She stated that PW1 went to the station accompanied by her teacher who claimed she had been defiled by her father. She testified that PW1 confirmed to her that she had been defiled by her father from 2021 to November 2022. She then escorted her to hospital where she was examined and treated with the doctor confirmed defilement over a period of time.
She then took PW1 for age assessment and produced as an exhibit the report prepared thereafter showing she was between 13-15 years. She also identified to the court PW1’s certificate of birth and stated that the Appellant stayed with PW1 after chasing her mother away.
Defence case
14. The Appellant gave sworn evidence and testified that on 02/10/2022 he was at his home when he was called outside by the headman who handed him his daughter and asked him to go to their offices for inquiries. The Appellant stated that he proceeded there and found the Sub-Chief who informed him PW1’s mother had threatened to kill her and was asked to look after her.
He testified that he stayed with her from 02/10/2022 to November 2024 when he asked her to go to her mother. That she went and returned but following threats to beat her up, she left not to return again and he proceeded to Kabaa for work before being arrested there by the Sub-Chief accompanied with two other people who took him to the police station where he was locked up.
15. The Appeal was canvassed through written submissions. The Appellant’s submissions are dated 20th September 2025 whilst the Respondent’s submissions are dated 26th June 2025 filed by Ms. Agatha Abang, prosecution counsel. I will refer to the proceedings and the parties’ respective submissions in my analysis of the appeal.
Analysis and Determination
16. This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up to its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanor. This court is guided by the Court of Appeal case of Okeno – VS – Republic (1972) EA 32 where it was stated as follows: -
“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses”.
17. Also, in Peter’s vs Sunday Post (1958) E.A. 424 it was held that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower courts finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the magistrate findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses.
18. In the case of Republic Vs Edward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India Case of Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 where the case of Bhagwan Singh Vs State of M. P. (2002)4 SCC 85 was cited as follows:-
“The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining as to whether all or any of the accused has committed any offence or not.”
19. Having carefully considered the lower court record, the Petition of Appeal and the grounds raised therein as well as the submissions of the parties, I find the following as pertinent issues for determination;
a. Whether the prosecution proved the case beyond reasonable doubt
b. Whether the sentence should be interfered with.
a. Whether the prosecution proved the case beyond reasonable doubt
20. It is trite law that all criminal offences require proof beyond reasonable doubt. Lord Denning in Miller vs. Ministry of Pensions (1947) 2 All ER, 372 stated as follows:
“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is beyond reasonable doubt, but nothing short of that will suffice.”
21. In this case, the Appellant was charged and sentenced under Section 20 (1) of the Sexual Offences Act which provide as follows:
(1) “Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest and is liable to imprisonment for a term of not less than ten years:
Provided that if it is alleged in the information or charge that the female person is under the age of eighteen years, the accused person shall be liable to imprisonment for life and it shall be immaterial that the act which causes penetration or the indecent act was obtained with the consent of the female person.”
22. The ingredients for the offence of incest can be summarized as follows;
a. Proof of the age of the victim.
b. Proof that the offender is a relative of the victim.
c. Proof of penetration or indecent act.
d. proper identification of the perpetrator.
a. Proof of the age of the victim.
23. During the voir dire examination, the complainant/victim PWI testified that she was 14 years old. PW4 the Clinical Officer confirmed the victim PWI was 14 years old. He produced the age assessment report which estimated the age as between 13-15 years of age. The 14 years falls within this bracket.
24. A cursory perusal at the proceedings shows that the Appellant did not dispute the fact of age of the complainant or raise any objection even to the production of the copy of the Age Assessment Report. The trial court thus came to the right conclusion that the age of the complainant/victim was sufficiently proved to be 14 years.
b. Proof that the offender is a relative of the victim
25. The complainant/victim PWI refers to the Appellant as her father in her evidence. She stated that she was staying with her father the Appellant alone as her mother was married elsewhere. PW3 testified that the Appellant was the victim's father. This was also confirmed by the PW5. It is confirmed in the evidence tendered by PW1, PW3 and PW5 that when PWI mother remarried, PW1 was taken to the Appellant to stay with him as he was her father.
26. Section 20 provides that:
"Any male person who commits an indecent act or an act which causes penetration with a female person who is to his knowledge his daughter, granddaughter, sister, mother, niece, aunt or grandmother is guilty of an offence termed incest”.
27. PW1 is the daughter of the Appellant which falls under the ambit of Section 20(1) of the Sexual Offences Act. From the evidence that was adduced during trial it is clear that the Appellant is the father of the victim and thus existed relationship as envisaged in the Act.
28. Therefore, the evidence on relationship between the complainant/victim and the Appellant is water tight.
c. Proof of penetration or indecent act.
29. On the issue of penetration, the same is defined in Section 2 of the Sexual Offences Act as;
“penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
30. The victim PW1 stated that the Appellant first had sexual intercourse with her on 20/1/2011. She states the Appellant came to her bed naked while she was asleep and forced her to sleep with him. She said it happened severally. She stayed she felt pain. She stated in page 10 of the proceedings that the Appellant "pushed his thing through my part I use to urinate. I saw his part because he was naked. He used that part to pee/urinate. I did not feel nice. " Referring to his penis and her vagina. PW1 testified that the Appellant defiled her repeatedly.
31. PW4 the clinical officer corroborates the evidence of PW1. The P3 form confirmed defilement of the subject on last incident 3.11.22. It also indicates the defilement happened over a period of time. The hymen was indicated as torn and not a fresh tear. The Post Rape Care Form indicated the same and also indicted that pus cells were noted and bacteria in the urine being a sign of an infection. Further PW4 indicated the Appellant was examined and his PW3 indicated he had the same infection as the child victim was noted. All reports were produced as exhibits before the Trial Court.
32. The defilement is said to have happened over a period of time. The hymen was torn indicating penetration. It was not a fresh tear as the defilement happened over a period of time. PW4 stated that the child PW 1 and the Appellant both had the same infection when the urine test was done on both of them. He stated in page 41 " The accused person was examined. I examined him...... urine test infection same to the child noted. "
This proves penetration and sexual intercourse by the Appellant to the victim PW1 to cause them to have the same infection. With the victim's PW1 evidence corroborated by PW4 penetration was proved.
33. On the above evidence, I have no doubt that the prosecution proved penetration to the required standard.
d. proper identification of the perpetrator.
34. PW1 the complainant testified that in 2022 she was staying with her father whom she pointed at being the Appellant while she tendered her evidence before the trial court. She stated that she was staying with her father the Appellant alone. PW1 also stated she had not had sex with anyone else other than the Appellant her father. Identification was by recognition which was the best form of identification.
35. I equally find that the prosecution’s proof of identification of the Appellant as the perpetrator was unshaken and the Appellant’s ground of appeal that the trial court and the Appellant’s ground of appeal that the trial court failed in matters of law and fact by failing to observe that he was not properly identified as the perpetrator of the offence charged to be without merit.
36. Consequently, upon re-evaluating and re-analysing the totality of the facts and evidence on record, I find that the evidence on the offence of incest herein points a firm finger at the Appellant as the perpetrator. Thus, the prosecution proved the charge of incest against the Appellant beyond reasonable doubt.
37. The upshot is that the appeal as against conviction under the offence of incest therefore fails.
a. Whether the sentence should be interfered with.
38. As regards the life sentence that was imposed on the Appellant upon conviction, this Court is guided by the decision in Republic v Joshua Gichuki Mwangi SC Petition No. E018 of 2023 that the minimum sentences in the Sexual Offences Act are constitutional.
39. By virtue of the cited Supreme Court judgment in Republic v Joshua Gichuki Mwangi SC Petition No. E018 of 2023 the courts are bound by the minimum mandatory sentence as provided for by law more so by the Sexual Offences Act NO. 3 of 2006.
40. Looking at the circumstances of this case, the Appellant took advantage of his already vulnerable daughter. The Appellant owed a duty of care to the victim as her biological father to protect her and provide for her but instead the Appellant turned into a beast and devoured her own child. The victim PW1 has to live with the very sad fact and reality that the Appellant, her father, defiled her, soiled her purity and robbed her of her virginity.
41. I find the sentence to have been legal and as prescribed by law under section 20 (1) of the Sexual Offences Act No. 3 of 2006.
42. The upshot is that, I hereby find that this appeal lacks merit and is thus dismissed in its entirety. The conviction and sentence of the trial court is upheld.
Right of Appeal 14 days.
It is so ordered.
JUDGMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 4TH FEBRUARY 2026.
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 4TH FEBRUARY 2026.